Continuing the conversation … the fading star of the rule of law

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05 Feb 2015 — By Frances Joychild QC

On 7 November last year, the Chief Judge of the High Court, the Hon Justice Helen Winkelmann, gave the Ethel Benjamin address on the subject of civil law: Access to Justice – Who Needs Lawyers? It seems she has illuminated the most critically important legal conversation of our time, for civil law at least. I wish to participate in it and my contribution follows.

Access to justice is not just a human right for individuals. It is central to our constitution and social wellbeing. Access to justice enables the rule of law. One of the rule’s tenets is that all are treated equally and all are equally accountable under the law. The rule of law ensures that we live in a safe, peaceful, harmonious, free and democratic society.

Over the past three years, I have wondered increasingly if I have woken in Charles Dickens’ England. On a daily basis, I clear my email and phone messages or answer the phone to at least one person in dire and desperate need of legal assistance, often with an extraordinary legal problem and always having found no-one to help them.

By the end of last year, I was turning away many more contactees than I could help. Like others, I take on legal aid cases and clients who can pay by only small instalment. I also do some pro bono work. However, no-one can run a viable practice without a healthy balance of paying clients. In recent months, several of those contacting me said they had already tried large numbers of lawyers – from legal aid lists given to them by the Ministry of Justice or from the phone book or internet. Even for those who remain eligible for legal aid, the repayment rules have got tighter and can act as a disincentive to uptake.

Legal aid as we know it today

I understand fully why such large numbers of lawyers have withdrawn from the legal aid system. Enough has been said already about the rates of payment. These and fixed hours are inadequate in the context of the costs of running a legal practice. Those doing legal aid now should be recognised for the fact they are in part donating their work to enable the rule of law to continue.

If a person happens to be in the increasing minority who are still eligible for legal aid, legal aid providers have to explain to them nineteen matters relevant to their grant of aid. Of most deterrence to the client are the legal aid debt rules. The client is told they may have to repay some or all of the legal aid granted to them and that interest will be charged on all outstanding debt when the case is finished. Further, the client is told that, in accepting legal aid, he or she is consenting to the Ministry sending the debt to a third party debt collector and to debt collection costs being added to the debt. Also the client is to understand that the Ministry can deduct the debt via payments from his or her income or bank account. The client is also waiving legal professional privilege.

Last year, I acted for an elderly client who lost everything following a business collapse and was living solely on national superannuation in a rented home. He started having panic attacks when advised he had to repay approximately $6000. He had been treated already for severe depression, which returned with a vengeance. I applied for a write-off ($100 fixed fee for me) explaining all his financial circumstances and three months later he was successful. One has to wonder why the Ministry (which was aware of his financial circumstances as both the client and lawyer have a duty to let the Ministry know of any change of circumstances that might affect legal aid eligibility) did not write the debt off when it first set the repayments.

A woman I advised recently, who needed to challenge the application of a government regulation that was preventing her from being registered in her profession and so able to earn considerably more than her minimum wage job, decided she could not take the risk of incurring further debt for her and her young daughter. The legal issues were far too complex for her to try to take the case on her own. Neither could she have spared the time and her wages to do so.

The vast population who can’t afford a lawyer

From my personal experience, I estimate that at least half the population of New Zealand could not afford legal services, were they to need them. With many ineligible or deterred from accessing legal aid and the median New Zealand income at $31,200 (Statistics New Zealand; NZ Income Survey, June 2014), the facts speak for themselves.

A client I acted for recently on legal aid, in a professional negligence matter involving four to five witnesses and a hearing of 2.5 days, told me he spent a whole day in Auckland city with his mother, herself a professional, knocking on doors of law firms and barristers’ chambers. The quotes for representation were around $100,000 and most of the money was required to be paid up front before legal work commenced.

Justice Winkelmann has referred to the huge problems to the court of the unrepresented litigant. However, as she also recognised, there are those who cannot self-represent for many varied reasons. For example, I understand that many small businesses in South Auckland use gangs to collect debts rather than filing for them in the District Court. In some parts of society then, the rule of force rather than the rule of law operates.

Types of legal problems appearing

Employment Court and Employment Relations Authority (ERA) decisions are starting to show the tip of malpractices in the New Zealand labour market. A 2012 ERA decision records a woman having paid $27,000 for a telemarketer job in Auckland (Jingxin Tian v South Pacific Ltd [2012] NZERA Auckland 367). The employer required her to withdraw cash for the same amount she had been given in wages and return it to the employer immediately she received it. Also, she had to pay her own PAYE. Effectively she was paying to be employed.

I have acted for persons who paid an employer for a job for their daughter, who then refused to return the money when they withdrew from the agreement. One client was working all night at a retail outlet six nights a week for nothing but food. Clients have told me they work with people being paid half the minimum wage – people working up to 14 hours a day without food breaks, sick leave, holiday pay. They have also told me about very widespread employer practices of paying staff under the table to avoid tax or to record staff working many less hours than they actually work so as to avoid paying tax. That affects the employee in many ways, including access to accident compensation.

Some of the most alarming cases I have dealt with recently come from income-tested beneficiaries. There are increasingly large discretions held by WINZ officials, largely without legal overview by independent lawyers. I have heard regular complaints of benefits being randomly cut off, without notice. And it taking weeks or even months and numerous phone calls or visits to WINZ offices to get them reinstated. Often these cut-offs are the result of a mistake on the part of the WINZ system (e.g. the medical certificate had been delivered on time but had not made it to the file).

One family I dealt with in November (on another matter) had three children under ten and were without any WINZ support other than two food grants for months last year after the parents’ work stopped and the file passed between ACC and WINZ. The benefit was finally paid after the landlady went down to the WINZ office with the client. Miraculously, a cheque for back-payment of benefit was written out. The harm inflicted on the parents and children in that time will have consequences for decades.

Clearly, beneficiaries have no money to employ a lawyer. Most of the problems they encounter are not covered by legal aid. Some are lucky enough to have access to unpaid beneficiary advocates. I suspect a very large number do not. It is extraordinary that, in an area of major legal complexity, wide government discretions and deeply disempowered citizens, the rule of law is at its weakest.

Solutions

What is evident is that there is a huge middle and low-income untapped legal market. There are many cases in these markets that can be financially viable. For example, one young lawyer with six years’ experience told me last year that she persuaded her firm to let her take a claim against an insurance company where the client was impecunious. The case was settled with full reimbursement to the firm and a very fair recovery for the client.

Last year, I offered a law graduate 20 hours work a week. Other barristers have made up the rest. He has enabled me to take on many more cases from the untapped market. He is having great fun, learning tremendous and varied skills and feels a sense of satisfaction. He has worked in contract, tort, employment, insolvency, bankruptcy, human rights, professional negligence and privacy. There is the pleasure of seeing right done by people and their lives being put back on track or at least having had a voice and being able to put a matter to rest. There is also the pleasure in helping someone launch their own career and the friendships that emerge as a consequence.

Another very wonderful thing happened to me last year. I was approached by a person describing himself as a retired judge in his eighties. He offered to provide me with pro bono assistance one day a week. Not only was I touched by the generosity, but deeply impressed by the quality of the work. He has reviewed the complex claim of a person wanting to instruct me and advised me on it, drafted a letter in a complex issue surrounding government policy and regulations, and is now undertaking a series of interviews with a pro bono client with a very complex fact situation.

Another barrister offered a spare room in her chambers for him to work in and interview clients. A former colleague has contacted me on her pending retirement as a lawyer. She too has offered to do some pro bono work. There are many graduates and new lawyers keen to throw themselves into the market and learn skills.

There are many retired lawyers who may likewise be open to making such contributions for other lawyers and barristers. There are also many who may feel they have earned enough to make unpaid contributions (and of course some already do this).

How to put all this together? Perhaps we need information and discussion papers reviewing successful overseas models. Why not a feeearning firm (or chambers) which also services the untapped market by using recent graduates supervised by senior lawyers? Some cases would be part-paying (as legal aid is), some with significantly reduced fees, some on conditional fee arrangements and some pro bono. Perhaps there could be charitable donation rebates or other fiscal incentives to undertake such work.

For income-tested beneficiaries, who are completely impoverished and have ongoing dealings with government departments, perhaps a clinic specialising in social security law and advocacy is the answer. Not only is social security law highly complex, but the relationship between client and department is usually in motion, rather than static. There is unlikely to be any way of earning money out of such a practice, unless it is funded. Ideally, there would also be a Social Security Ombudsman, something like the Banking and Insurance Ombudsman – though publicly funded. That too could have law graduates and senior law students.

We are a profession of talented and creative people. Let’s keep talking. I am sure there are many possible solutions that can emerge from our collective thinking so that we can play our role in reversing the fast fading of the rule of law.